Delhi District Court
Prosecution Story. In Case Titled As ... vs . on 25 October, 2017
IN THE COURT OF METROPOLITAN MAGISTRATE
(MAHILA COURT) -02 CENTRAL DISTRICT, TIS HAZARI
COURT, DELHI
Presided by : Ms. Sonam Singh
State v. Bhudev Prashad
FIR No. 247/13
Police Station : Subzi Mandi
Under Sections: 354A (i) /509 of the Indian Penal Code, 1860
(in short "IPC")
CIS No. 297351/16
Date of institution : 14.02.2014
Date of reserving : Oral
Date of pronouncement: 25.10.2017
JUDGMENT
a) Serial number of the case : 13/2/14
b) Date of commission of : 06.11.2013 offence
c) Name of the complainant : Ms. S. (In view of the decision dated 31.08.2016 of Hon'ble High Court of Delhi in Manoj v. State GNCT of Delhi, Crl Appeal no 647/2015, the name of the complainant is not being disclosed herein, as the case involves offence of a sexual nature. The complainant shall be referred to as "Ms. S".)
d) Name, parentage and : Bhudev Prasad Sharma address of the accused S/o Late Sh. Shanti Ram State v Bhudev Prasad Sharma FIR no. 247/13 PS Subzi Mandi 1/12 R/o H. No. A-157, Gali No. 6, Som Bazar, Gamri Vistar, Delhi.
e) Offence complained of : Sections 354A(I) /509 of the IPC
f) Plea of the accused : Accused pleaded not guilty
g) Final order : Accused stands acquitted of the offences punishable under Section 354A/509 IPC.
h) Date of final order : 25.10.2017 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Vide this judgment, the accused is being acquitted of the offence punishable under : 354A (i) /509 of IPC in this case for the reasons mentioned below.
CASE OF THE PROSECUTION
2. The case of the prosecution as unfolded by the police report under Section 173 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') is that on 06.11.2013 at about 10:45 am, near Court room no. 273, Tis Hazari Courts, Delhi, within the jurisdiction of P.S. Subzi Mandi, the accused Bhudev established physical contact and advances involving unwelcome and explicit sexual overtures, by putting his hand inside the blouse of the complainant who is his daughter-in-law and committed an offence punishable under Section 354A (i) IPC. Further, it State v Bhudev Prasad Sharma FIR no. 247/13 PS Subzi Mandi 2/12 is alleged that on the said date, time and place, the accused also uttered insulting words to the complainant with the intention to insult her modesty and thereby committed an offence punishable under section 509 IPC.
3. The investigation was done by the IO ASI Yogesh Kumar, who filed the police report under Section 173 of the Cr. P.C. in respect of the offences punishable under Section 354A(i) and Section 509 IPC.
COURT PROCEEDINGS
4. The learned predecessor of this court took cognizance upon the said police report on 14.02.2014. On 03.05.2014, the Accused was supplied with the copies of police report and documents.
CHARGE
5. Vide order dated 30.06.2014, the learned predecessor of this court framed the charge against the accused for the offences punishable under Section 354A
(i) / 509 of the IPC, to which he pleaded not guilty and claimed trial.
State v Bhudev Prasad Sharma FIR no. 247/13 PS Subzi Mandi 3/12 ADMISSION/DENIAL OF DOCUMENTS
6. Vide order dated 19.07.20167, in compliance with the provisions of Section 294 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C.") , the accused was called upon to admit or deny the genuineness of the order sheets dated 07.11.2013 regarding assignment of the application for recording statement u/s 164 Cr.P.c. filed by the IO, proceedings u/s 164 Cr.P.C., statement of Ms. S. under Section 164 Cr.P.C. recorded by Ms. Deepika Singh, Ld. MM, application of the IO for supply of copy of statement u/s 164 Cr.P.C. All the said documents were admitted by the accused and were accordingly exhibited as Ex. P/A/1, Ex. P/A/2, Ex. P/A/3, Ex. P/A/4 and Ex. P/A/5 respectively. In view of the admissions made, the evidence of PW Ms. Deepika Singh, learned Metropolitan Magistrate, Tis Hazari Courts, Delhi was dispensed with.
EVIDENCE OF THE PROSECUTION
7. Thereafter, the matter was listed for prosecution evidence.
State v Bhudev Prasad Sharma
FIR no. 247/13 PS Subzi Mandi 4/12
(i) Prosecution Witnesses
In order to prove and substantiate its case, the prosecution the prosecution in all has examined seven witnesses, namely:
Sr. Designation and Name Role in the present case No of the Witness
1. PW 1 Ms. S Complainant
2. PW 2 HC Chhidda Singh Witness to whom rukka was handed over and who got the FIR registered
3. PW 3 HC Bhagirath Duty officer
4. PW 4 Ct. Vikram Singh Witness who interrogated, arrested and conducted personal search of accused
5. PW 5 ASI Yogesh Kumar Investigating Officer
6. PW 6 W/Ct Rashmi Witness who had accompanied the witness HC Chidda Singh
7. PW 7 HC Ravi Kumar Witness who handed over the DVD containing the CCTV camera footage installed in front of court room no. 273
(ii) Documents on record:
State v Bhudev Prasad Sharma FIR no. 247/13 PS Subzi Mandi 5/12 The prosecution witnesses relied on the following documents:
Sr. Exhibits/ Nature of documents No Marks
1. Ex. PW1/A Complaint of the complainant
2. Ex.PW1/B Site plan prepared at the instance of the complainant
3. Ex.PW1/C Statement of the complainant u/s 164 Cr.
PC
4. Ex.PW3/A Endorsement on the complaint
5. Ex.PW3/B Certificate under Section 65B of the Indian Evidence Act to prove the authenticity of the FIR.
6. Ex. PW 4/A Arrest Memo
7. Ex. PW 4/B Personal Search Memo
8. Ex. PW 5/A Rukka
9. Ex. PW 5/B Seizure Memo of the CD of the CCTV footage 10 Ex. PW 5/C CD containing CCTV footage Thereafter, prosecution evidence was closed vide order dated 02.02.2017. The court will discuss the testimonies of the said witnesses later i.e. at the time of appreciation of evidence.
THE STATEMENT OF THE ACCUSED UNDER SECTION 313 Cr.PC. / DEFENCE OF THE ACCUSED
8. The Accused in his statement under Section 313 Cr.P.C., on 13.04.2017 denied the entire evidence put to him. He stated that he is innocent and has been falsely State v Bhudev Prasad Sharma FIR no. 247/13 PS Subzi Mandi 6/12 implicated in the present case by the complainant. The accused did not lead any evidence in his defence.
FINAL ARGUMENTS
9. The Court heard the final arguments on 26.09.2017.
ANALYSIS AND FINDINGS
10. I have heard the submissions of Sh Vikas, Learned Substitute Assistant Public Prosecutor for the State as well as that of Ms. Kusum Gupta, Ld. counsel for the accused. The court has also diligently gone through the charge- sheet, documents, evidence recorded and the entire material on record.
11. In order to decide the present case, it is important to discuss the provisions. First, let us discuss Section 354A(i) IPC. Section 354A(i) IPC punishes sexual harassment and specifically punishes the act when a man makes physical contact with a woman with advances involving unwelcome and explicit sexual overtures.
12. Section 509 IPC prescribes punishment for uttering any insulting words to a woman with intention to outrage the modesty of said woman.
State v Bhudev Prasad Sharma FIR no. 247/13 PS Subzi Mandi 7/12
13. Let us now appreciate the evidence available on record in the light of aforesaid legal provisions. The case of the prosecution is that on 06.11.2013, at about 10:00 am, the accused outraged the modesty of the complainant, who is his daughter-in-law outside the court of Ms. Mona Tardi Kerketta, court room no.273, Tis Hazari Courts, Delhi by putting his hand inside her blouse and also insulted her by uttering abusive words with the intention of outraging her modesty.
Non-joinder of independent public witnesses
14. The only material witness examined by the prosecution is the complainant herself. The said incident as per the complainant has taken placed outside the court room no. 273 and she herself admitted in her cross- examination that the spot was crowded with public persons. It is also pertinent to note that in her statement under Section 164 CrPC before the Ld. MM, she stated that other persons who present at the spot told her after the incident had taken place that she should not cry but call up 100 number but none of those persons have been cited as witnesses. Litigants, lawyers and other public persons would have been present outside the court. However, no attempt has been made by the prosecution to join the public persons as witnesses. Thus, despite availability, no independent public witness to the alleged State v Bhudev Prasad Sharma FIR no. 247/13 PS Subzi Mandi 8/12 incident has been cited or examined by the prosecution. The same is a circumstance which casts a doubt on the prosecution story. In case titled as "Roop Chand Vs. State of Haryana" reported as CC Cases 3 (HC), it was held that, " Where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected."
15. In the case of "Hem Raj v. State of Haryana" AIR 2005 SC 2110, it has been observed that : "The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Non - examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eyewitnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
State v Bhudev Prasad Sharma FIR no. 247/13 PS Subzi Mandi 9/12 Non-joinder of the brother of the complainant as a witness
16. The complainant in her cross-examination has deposed that her brother had accompanied her to the court yet he has not been made as a witness. The lapse on the part of the prosecution in not joining the brother of the complainant as a witness also makes the story of the prosecution weak Lapses and improvements in the testimony of the prosecutrix
17. PW-1 is the star witness of the prosecution in the present case being the complainant/victim. There are several lapses and contradictions in the testimony of the said witness of the prosecution. There are several improvements in the statement of the complainant recorded under Section 164 Cr.P.C. and her testimony as PW-1 over her version contained in the complaint Ex. PW1/A.
18. The prosecutrix/complainant in her cross- examination had deposed that "I did not raise any hue and cry during the incident." It is highly suspicious that after a man has put inside his hand inside the blouse of a woman, State v Bhudev Prasad Sharma FIR no. 247/13 PS Subzi Mandi 10/12 the woman would not create a commotion. In this regard, it is also important to refer to the testimony of PW2, HC Chhidda Singh and PW6 WCt. Rashmi, who deposed that after a PCR call was received from the complainant, they reached the spot but she refused to give her statement at that time and only later on, she physically went and gave her statement. No plausible explanation has been given by the complainant for not giving the complainant immediately.
19. Another contradiction which is apparent between the statement of the complainant under Section 164 CrPC before the Ld. MM and her testimony before the court is that in her statement under Section 164 CrPC, she has stated that while the accused abused her and left the court while talking on the phone but the complainant has not stated anything like this in her evidence.
CCTV footage does not cover the incident
20. The prosecution has placed on record a CD of CCTV footage, outside the court room no.273, i.e. the place of incident which is Ex.PW5/C. However, the prosecution witness, PW5, the IO, ASI Yogesh Kumar himself deposed that the CCTV footage did not cover the spot of the alleged incident. The CD once played did not State v Bhudev Prasad Sharma FIR no. 247/13 PS Subzi Mandi 11/12 show the occurrence of any such incident as alleged by the complainant.
Conclusion
21. In light of the above discussion, in the considered opinion of this Court, the prosecution has failed to prove its case against the accused beyond reasonable doubt. Accused is entitled to the benefit of doubt. He is hereby acquitted of the offences punishable under Section 354 A
(i) /509 I.P.C.
22. File be consigned to Record Room after compliance of the provisions of Section 437 A Cr.P.C.
Announced in open Court on 25.10.2017.
(SONAM SINGH) Metropolitan Magistrate (Mahila Court)-02, Central District, Tis Hazari Courts, Delhi State v Bhudev Prasad Sharma FIR no. 247/13 PS Subzi Mandi 12/12